Most discretionary waiver statutes specify threshold criteria similar to those outlined in Kent v. United States (383 U.S. 541, 566-67 (1966)) that must be met before the court may consider waiver in a given case: generally a minimum age, a specified type or level of offense, a sufficiently serious record of previous delinquency, or some combination of the three. However, 17 States authorize discretionary waiver, at least for certain age groups, for any offense. (This is not to say that offense seriousness is not taken into account in waiver determinations in those States, only that their statutes specify no particular kind or quality of offense as a threshold for waiver consideration.)
Some States specify that the prosecutor must initiate the discretionary waiver process by filing a motion; others allow any party or the court to initiate the process.
In all States where discretionary waiver is authorized, the juvenile court must conduct a hearing at which the parties are entitled to present evidence bearing on the waiver issue. In addition, laws in seven States require a prehearing investigatve report on the accused juvenileís past record and current circumstances, prepared by a juvenile probation office or some other local agency, to be submitted to the juvenile court for its consideration.
The prosecution bears the burden of proof in a discretionary waiver hearing; however, some States designate special circumstances under which this burden may be shifted to the child (see Presumptive Waiver). Generally, the case for a waiver must be made by "a preponderance of the evidence," although a few States require a higher showing (see Clear and Convincing Evidence Standard in next chapter). In most discretionary waiver jurisdictions, the law specifies factors a court must weigh, findings it must make, and an overall standard it must apply in making its waiver decision (see Transfer Criteria below).
Once a case has been waived to criminal court, statutes in seven States expressly provide that the criminal court may exercise jurisdiction not only over the offense that triggered the waiver, but also over any lesser included offenses.
The most common waiver standards call for courts to exercise their discretion to waive jurisdiction when the interests of the juvenile or the public (six States) or the interests of both (four States) would be served thereby; when the public safety (six States) or the public interest (four States) requires it; or when the juvenile does not appear to be amenable to treatment or rehabilitation within the juvenile system (four States). Most of the remaining standards combine these concepts in some way (the District of Columbia, for example, authorizes waiver if it is "in the interest of the public welfare and protection of the public security and there are no reasonable prospects for rehabilitation") or simply allow waiver whenever the court finds "good cause" (Kansas) or whenever the accused is not a "proper subject" for juvenile treatment (Missouri and Virginia). Besides requiring the court to consider "the best interests of the youth and of society" as a number of other States do, Oregon departs from the usual practice by focusing on whether the juvenile has the capacity "to appreciate the nature and quality of [his or her] conduct."
Most States that specify particular factors to be considered in waiver hearings either simply paraphrase the list from the U.S. Supreme Courtís Kent opinion or list some of the Kent factors that are considered more important while omitting others. But a few States add factors of their own to the Kent list. In the District of Columbia, for example, judges considering waiver are called upon to bear in mind, besides the Kent factors, the "potential rehabilitative effect . . . of parenting classes or family counseling" on the juvenile. Arizona adds consideration of the views of the victim and any gang involvement on the juvenileís part to the usual list of factors. Maine requires the court to ask whether retaining jurisdiction would "diminish the gravity of the offense" in public opinion. In Missouri, courts must take into account any "racial disparity in certification" of juveniles for adult prosecution.
Most State statutes simply recite the factors and leave them to the consideration of juvenile court judges, without attempting to dictate precisely how they should fit into the waiver decision. In Michigan and Minnesota, however, courts are required to give the most weight to two specified factors (offenseseriousness and prior record), whereas in Kentucky the law specifies that, of the seven factors the court must consider, at least two must support any decision in favor of waiver.
Mandatory waiver must be distinguished from statutory exclusion. When an offense has been excluded by law from juvenile court jurisdiction, the case against a minor accused of that offense originates in criminal court. Under ordinary circumstances, the juvenile court has no involvement and is entirely bypassed. By contrast, although the juvenile courtís involvement in a mandatory waiver case may be minimal, it receives the case initially, conducts some sort of preliminary hearing to ensure that the case is one to which the mandatory waiver statute applies, and issues a transfer order and any other necessary orders, relating to appointment of counsel, interim detention, and so on.
The mandatory waiver classification applies to statutory mechanisms that actually tie the juvenile courtís hands -- not those that merely seem to. So, for example, the many State laws that recite that the juvenile court "shall" or "must" transfer certain juveniles -- if the public interest requires it or unless there are good reasons not to -- are classified as discretionary waiver provisions. Generally, in a true mandatory waiver jurisdiction, the juvenile court is called upon only to determine that there is probable cause to believe a juvenile of the requisite age committed an offense falling within the mandatory waiver law. However, even this is not always necessary: in Indiana and South Carolina, which require mandatory waiver in cases involving juveniles with certain prior records, the juvenile court, once it has confirmed the juvenileís record, may leave the probable cause determination to the criminal court. In Connecticut, the law stipulates that, where the mandatory waiver provision applies, the juvenileís counsel is not permitted to make any argument or file any motion to oppose transfer; in fact, in those mandatory waiver situations in which a probable cause finding is necessary, the court makes it without notice, a hearing, or any participation on the part of the juvenile or his or her attorney.
Laws in a few States specify types of cases in which courts must at least consider waiver. For instance, Delaware, besides requiring waiver in certain cases, also requires that the courts give consideration to waiver in some others -- as when a juvenile of at least 14 is charged with violating a restitution order or when one who is at least 16 is charged with having committed any of various listed crimes. Likewise, a Missouri law mandates that the court at least hold a waiver hearing when a juvenile is charged with any of a number of serious crimes or has already committed two or more previous felonies. However, since these laws do not affirmatively mandate waiver -- only that the courts consider waiver -- they have been classified as discretionary waiver provisions.
It should be noted that the rebuttable presumption in these cases applies if the juvenile meets statutory critera qualifying the case for presumptive waiver treatment. It would not ordinarily apply to the question of whether the juvenile meets these criteria. For instance, in Alaska -- which like many States generally requires that the prosecutor in a waiver hearing demonstrate probable cause to believe that the juvenile actually committed the crime alleged (see Additional Pretransfer Findings Required) -- the prosecutor must show probable cause even when the alleged crime is one that triggers a presumptive waiver. Only when the prosecutor has met this initial burden must the juvenile come forward with evidence of "amenability to treatment" as a juvenile.
In four States, a child subject to a presumption in favor of waiver not only has the burden of proof at the waiver hearing, but must present "clear and convincing evidence" that a waiver is not justified (see Clear and Convincing Evidence Standard).
Statutory criteria triggering presumptive waiver fall into three broad categories. In some States, it is primarily the current offense that matters; in Alaska, for example, children of any age charged with certain violent felonies are rebuttably presumed to be "unamenable to treatment." (Alaska, however, is the only State that has set up a presumption against children younger than 14.) In others, older juveniles are singled out, even if the offenses of which they are accused would not otherwise trigger a presumption; in New Hampshire, the same crimes that would merely authorize consideration of a waiver in the case of a 13-year-old would presumptively require one if the juvenile involved was 15 at the time of commission. Still other States emphasize the childís prior offense history over other factors; in Colorado, if the juvenile otherwise qualifies for discretionary waiver treatment, a sufficiently serious prior delinquency record triggers the presumption all by itself.